Summary

On November 17, 2023, the U.S. Department of the Treasury (Treasury) and the Internal Revenue Service (IRS) issued a notice of proposed rulemaking (the Proposed Regulations) regarding the investment tax credit (ITC) under Section 48 of the Internal Revenue Code of 1986, as amended (the Code) pursuant to changes authorized by the Inflation Reduction Act of 2022 (IRA). These proposed regulations provide the first substantive updates to the existing ITC Treasury Regulations in § 1.48-9 since 1987. This notice of proposed rulemaking also withdraws and reproposes portions of proposed rules issued on August 30, 2023, with respect to Section 48 and supplements proposed rules issued on June 21, 2023, with respect to the transferability regime under Section 6418.

Key Takeaways

The Proposed Regulations:

• clarify various energy property definitions, including geothermal energy property, combined heat and power system property, and solar energy property. The Proposed Regulations would also provide the first definitions for what qualifies as energy storage property;
• expand the functional interdependence test and integral part test to incorporate more project components of qualified energy property;
• clarify recapture rules for failing to meet prevailing wage and apprenticeship (PWA) requirements and timing for determining recapture events; provide corresponding changes to the transferability regime;
• formally adopt the “80/20 rule” in prior IRS guidance for purposes of repower projects;
• revise the “dual use” rule to reduce the minimum qualifying energy requirement from 75 percent to 50 percent; and
• clarify the interplay of qualified interconnection property with respect to the domestic content bonus and energy community bonus credit amounts.

A hearing on the Proposed Regulations is scheduled for February 20, 2024, with a deadline for public comments of January 22, 2024.

Clarifications to Eligible Energy Property Technologies

Acquisition of energy property. Proposed Regulation § 1.48-9(b)(2) would provide clarification regarding what “acquisition of energy property” means in a transaction by which a taxpayer obtains rights and obligations with respect to energy property, including legal title to the energy property under the jurisdiction in which the property was placed in service, by requiring that the taxpayer also have physical possession or control of the energy property. Proposed Regulation § 1.48-9(b)(3) would define “original use” as the first use to which a unit of energy property is put, whether or not such use is by the taxpayer. The Proposed Regulations state that the “original use” must begin with the taxpayer claiming the credit.

Intangible property. The Proposed Regulations provide that “energy property” does not include intangibles (e.g., PPAs, goodwill, going concern value, and Renewable Energy Certificates (RECs)), consistent with the definition of qualifying energy property under Section 48 as being tangible personal property.

Solar energy property. Proposed Regulation § 1.48-9(e)(1)(i) provides that “solar energy property” is equipment that uses solar energy to generate electricity, to heat or cool a structure, or to provide solar process heat. Proposed Regulation § 1.48-9(e)(1)(ii) defines the term “solar electric generation equipment” as equipment that converts sunlight into electricity through the use of devices such as solar cells or other collectors, while adopting the current statutory exclusion for any property used to generate energy for the purposes of heating a swimming pool. The Proposed Regulations would eliminate the exclusion for passive solar systems in existing Regulation § 1.48-9(d)(2) because Section 48 does not distinguish between passive and active solar energy systems. Proposed Regulation § 1.48-9(e)(1)(iii) expands the definition of solar process heat equipment to include equipment using solar energy to generate heat for use in industrial or commercial processes, thus removing long-standing confusion about the eligibility of solar process heat equipment for ITCs.

Geothermal energy property. Proposed Regulation § 1.48-9(e)(3) provides that geothermal energy property is equipment used to produce, distribute, or use energy derived from a geothermal deposit, including production and distribution equipment. Production equipment would include equipment necessary to bring geothermal energy from subterranean deposits to the surface; reinjection wells; and electricity generating equipment for projects that convert geothermal energy into electricity. The proposed regulations would add components of a building’s heating or cooling systems as distribution equipment.

Combined heat and power (CHP) system property. Proposed Regulation § 1.48-9(e)(6) adopts a streamlined definition of CHP and excludes property used to transport the energy source to the generating or distribution facility.

Biogas property. Proposed Regulation § 1.48-9(e)(11)(i) provides examples of functionally interdependent components of qualified biogas property, including waste feedstock collection systems, landfill gas collection systems, mixing or pumping equipment, and anaerobic digesters. Under the Proposed Regulations, upgrading equipment to enable the injection of biogas into a pipeline is not deemed necessary to satisfy statutory requirements with respect to the biomass methane percentage amounts, such that it be captured for sale or productive use. Accordingly, the Proposed Regulations explicitly disallow upgrading equipment as a functionally interdependent part of qualified biogas property.

Energy Storage Property

Definition of energy storage technology. Proposed Regulations in § 1.48-9(e)(10) would adopt the statutory definition of “energy storage technology” in Section 48(c)(6). This definition would confirm that the definition of energy storage technologies would not use a technology-specific definition, but rather provide a broader definition based on capabilities of energy storage technology. The ultimate effect of this definition is to include developing energy storage technologies that may otherwise not fit neatly into a technology-specific category.

Hydrogen storage. Proposed Regulation § 1.48-9(e)(10)(iv) provides clarification on hydrogen energy storage mediums, allowing for different hydrogen storage mediums to qualify under Section 48(c)(6)(A), including physical or material-based storage mediums. However, the Proposed Regulations provide that hydrogen energy storage property must store hydrogen that is solely used as energy and not for other purposes, such as the production of end products like fertilizers.

Functional interdependence test. Proposed Regulation § 1.48-9(e)(10) would apply the “functional interdependence test” (see discussion below) to determine whether components are included as part of the energy storage technology. Rechargeable electrochemical batteries of all types meet this functional definition by receiving energy through electricity, storing the electrochemical energy, and producing electricity. This provision contains a non-exclusive list of examples of different energy storage technologies that could qualify under Section 48. The Treasury Department is attempting to create broader language so that developing technologies in energy storage may qualify. Non-qualifying energy storage technologies that do not meet the functional definition under the Proposed Regulations include “virtual batteries” that aggregate controllable electricity demand but do not store electricity for later use. These virtual batteries primarily “shift” demand to different points in time, which is not defined as an energy storage technology under Section 48(c)(6). These rules would appear to allow taxpayers to treat solar or battery storage blocks or circuits (and similar units of other types of property) as separate units of energy property that may be placed in service on an independent basis.

Energy Property and Component Parts

Functional interdependence of energy property components. Proposed Regulation § 1.48-9(f) adopts the functional interdependence and integral parts of energy property tests to avoid limiting future technologies from qualification. Proposed Regulation § 1.48-9(f)(2)(i) provides that a “unit” of energy property consists of all functionally interdependent components of property owned by the taxpayer that are operated together and can operate apart from other energy properties within a larger energy project. Components of these properties are functionally interdependent if the placement in service of each component is co-dependent on other components to generate or store electricity, thermal energy, hydrogen, or perform its intended functions under Section 48(c).

Integral part of energy property. Proposed Regulation § 1.48-9(f)(3)(i) provides that property owned by a taxpayer that is an “integral” part of energy property is energy property. An “integral” part of property must be used directly for the intended energy property function under Section 48(c) and Regulation § 1.48-9(e), as well as be essential to the completeness of the intended function. 

Integral parts of energy property	Non-integral parts of energy property
Integral power conditioning equipment includes transformers, inverters, and converters. Parts related to the functioning or protection of power conditioning equipment, such as switches, circuit breakers, arrestors, and hardware and software used to monitor, operate, and protect power conditioning equipment are also considered integral.	“Upgrades” to biogas equipment necessary to condition the gas into an appropriate mixture for injection into a pipeline do not qualify as integral parts of energy property.
Integral transfer equipment, including equipment that allows for the aggregation or alteration of energy and voltage, respectively. Integral transfer equipment includes wires, cables, combiner boxes, and parts that facilitate the functioning and protection of equipment, like circuit breakers, fuses, and switches. Hardware and software used to monitor or protect transfer equipment are also considered integral.	Integral transfer equipment does not include transmission or distribution lines.
Roads used for the operation and maintenance of energy property qualify as integral parts of energy property.	Roads primarily used for site access or for employee or visitor vehicles do not qualify as an integral part of energy property.
Buildings that are integral to energy property are subject to an exception under Proposed Regulation § 1.48-9(f)(3)(iii)(E) and are treated as “structures.” Structures are either: essentially an item of machinery or equipment with respect to energy property, or essentially inseparable from the energy property the structure houses.	Buildings generally do not qualify as integral to energy property. In addition, fences are not integral parts of energy property.

Depreciation allowable. Proposed Regulation § 1.48-9(b)(4)(ii) would provide that if the basis or cost of energy property is not recovered through a method of depreciation but instead through a deduction of the full cost in one taxable year (e.g., under Section 179), a deduction for depreciation with respect to such property is not allowable to the taxpayer.

Placed in service requirement. The Proposed Regulations would clarify that the taxable year in which energy property is placed in service would be the earlier of the taxable year in which the period for depreciation of such property begins, or the taxable year in which the energy property is placed in a condition or state of readiness and availability for a specifically assigned function in either a trade or business or in the production of income, the latter of which is typically determined using a five-factor test derived from IRS guidance and case law. This test provides five common, though not exclusive, factors considered in determining placed in service dates, including:

1. The approval of required licenses and permits;
2. Passage of control of the facility to taxpayer;
3. Completion of critical tests;
4. Commencement of daily or regular operations; and
5. Synchronization of the property into a power grid for generating electricity to produce income.

This standard is consistent with and reaffirms existing placed-in-service rules.

Clarifications Regarding Recapture and Prevailing Wage and Apprenticeship Requirements

Prevailing wage and apprenticeship requirements. Newly proposed Regulation § 1.48-13 provides a definition of an energy project for the PWA requirements, guidance on the 1 MW exception, and the recapture rules for failure to satisfy the PWA requirements.

Section 48(a)(10)(C) recapture rules revised. Proposed Regulation § 1.48-13 provides guidance on recapture rules relating to the PWA requirements. A taxpayer that has claimed an increased credit under Section 48(a)(9)(A)(i) and 48(a)(9)(B)(iii), but failed to satisfy the PWA requirements under proposed Regulation § 1.45-7(b)-(d) with respect to any period during the five-year period, beginning when the project is placed in service, is subject to a recapture (of up to 100 percent) of the increased credit amount. In addition, the failure to satisfy the PWA requirements subjects a taxpayer to the correction and penalty provisions of proposed Regulation § 1.45-7(c)(1). The five-year recapture period under Section 48(a)(10)(C) would begin on the day an energy project is placed in service and end on the day that is five years after this placed-in-service date. Each year within this recapture period would be characterized as a separate recapture year. Further, the recapture amount percentages will be determined consistently with the provisions set under Section 50(a), based on the year in which the recapture event occurred, i.e., the increased credit amount would “vest” in an amount equal to 20 percent each year. Notably, the Proposed Regulations define “recapture event” as a failure to pay prevailing wages, but do not mention failure to use apprentices, which is consistent with the statutory language which only requires apprentices to be used during construction. Finally, the Proposed Regulations clarify that the taxpayer would be entitled to the base 6 percent ITC amount in the event of a recapture resulting from failure to comply with the prevailing wage rules during the recapture period.

• Correction and penalty payments. Proposed Regulation § 1.48-13 provides that if a taxpayer claimed the increased credit under Section 48(a)(9)(B)(iii) or transferred a credit portion under Section 6418 and failed to satisfy the PWA requirements under proposed Regulation § 1.45-7(b)-(d) for any period with respect to the alteration or repair of any project during the five-year recapture period and the taxpayer does not make the correction and penalty payments under proposed Regulation § 1.45-7(c), then no penalty is assessed, and the increased credit amount is subject to recapture.

Tax year in issue. To preemptively address issues regarding the five-year recapture period misaligning with tax year ends, the Proposed Regulations provide that a recapture event is determined at the close of the tax year that begins or ends within the five-year recapture period. Under the Proposed Regulations, the increased tax for the recapture amount would be assessed with respect to the taxable year in which the recapture event occurred.

Reporting requirements. Proposed Regulation § 1.48-13 includes annual reporting requirements to verify PWA requirements are met. These requirements are in addition to the previously proposed Regulation § 1.45-7(b)-(d), which created recordkeeping and reporting requirements. Further, the Proposed Regulations provide that taxpayers that claim the 30 percent ITC are required to include with tax returns filed for years including the recapture period, information with respect to the payment of prevailing wages for any alteration or repair of the project during the recapture period (assuming the PWA requirements applied in the construction of the applicable project).

Transferability under Section 6418. The Proposed Regulations confirm the notification requirements for an eligible taxpayer and clarify that a transferee taxpayer is responsible for any amount of increased tax under Section 48(a)(10)(C).

Energy project definition. Proposed Regulation § 1.48-13(d) provides a definition of “energy project” as one or more energy properties operated as part of a singular project, for the following categories: (1) PWA requirements under Section 48(a)(9); (2) domestic content bonus credit amount under Section 48(a)(12); and (3) energy communities bonus credit amount under Section 48(a)(14). Further, Section 45 qualified facilities that are “co-located” with Section 48 energy property will not be considered part of the project unless an election under Section 48(a)(5) is made. Thus, a taxpayer can claim production tax credits (PTC) on the electricity output from a wind, solar or other renewable energy project and an ITC on a co-located battery storage property.

• Multiple Energy Properties may be treated as one project. Subject to conditions, multiple energy properties may be treated as one project, if at any point during the construction of the multiple properties, a single taxpayer owns all the properties, and two or more factors are met as set forth under Notice 2018-59, which factors are incorporated into the Proposed Regulations. These factors are:
  • the energy properties are constructed on contiguous pieces of land;
  • the energy properties are described in a common power purchase, thermal energy, or other off-take agreement or agreements;
  • the energy properties have a common intertie;
  • the energy properties share a common substation, or thermal energy off-take point;
  • the energy properties are described in one or more common environmental or other regulatory permits;
  • the energy properties are constructed pursuant to a single master construction contract; or
  • the construction of the energy properties is financed pursuant to the same loan agreement.
  We note that this test may result in some unintended consequences and should be reviewed closely.
• Related taxpayers treated as one taxpayer. Proposed Regulation § 1.48-13(d) provides that related taxpayers are to be treated as one taxpayer in determining whether multiple energy properties are in fact a project. Relatedness is defined under Regulation § 1.52-1(b), typically as members of a group of trades or businesses that are under common control.

1 MW exception. The 1 MW exception applies through proposed Regulation §1.48-13(e), which provides that the increased credit amount is also available under Section 48 for energy projects with a maximum net output of less than 1 MW of electrical or thermal energy. The determination of “nameplate capacity” is expressed in MWs of either electrical or thermal energy.

• Exceptions. Electrochromic glass, fiber-optic solar, and microgrid controllers are not eligible for this exception as they do not generate thermal or electrical energy.
• Measurements. Proposed § 1.48-13(e) provides for specific MW conversion factors.

Retrofitted Property Plus the “80/20” Rule, the Dual Use Rule, and Eligible Basis Provisions

The 80/20 Rule applies to energy property under Section 48.Proposed Regulation § 1.48-14(a) applies the 80/20 Rule to energy property under the Section 48 ITC following comments requesting specific regulations to address the applicability of the 80/20 Rule to energy property. Importantly, the 80/20 test is applied in ITC projects to each “unit of energy property,” which means that all functionally interdependent components owned by the taxpayer or related parties would be tested in the aggregate. Thus, if a taxpayer claims an ITC on a wind farm, the 80/20 test is applied to the entire wind farm rather than to each turbine or other piece of equipment separately. This in turn may influence the decision whether to claim PTCs or an ITC. With respect to PTCs, some repowered turbines may qualify as new while others may not. With respect to ITCs, taxpayers must determine whether the entire project is new due to a repowering.

Dual use property and the 50 percent cliff. Proposed Regulation § 1.48-14(b)(2)(i) modifies the 75 percent cliff in existing Regulation § 1.48-9 to a 50 percent cliff. Specifically, this would require energy property to derive a minimum of 50 percent of energy from a qualifying source during annual measurement periods. If at least 50 percent of the energy is used from qualifying sources, a proportionate amount of the eligible basis of the energy property will be considered to calculate the Section 48 ITC. In addition, proposed Regulation § 1.48-14(b)(2)(ii) allows the dual use rule to permit the aggregation of energy inputs from more than one energy property. Importantly, the ITC must still be prorated to the extent the energy percentage is between 50 percent and 100 percent (and proportionally recaptured to the extent the percentage is reduced). Thus, if the energy percentage is 70 percent in the year the equipment is placed in service, the ITC amount is 70 percent of the ITC that could otherwise be claimed. Note that the dual use rule is not relevant to a battery or other energy storage property.

• The annual measurement period. Proposed Regulation § 1.48-14(b)(2)(iii) provides an annual measuring period for an item of dual use property being any period of 365 (or 366 in leap years) consecutive days, starting on the placed-in-service date.
• Incremental costs. Proposed Regulation § 1.48-14(d)(1) continues to apply the incremental cost of energy property as properly included in the eligible basis of the energy property used to calculate the Section 48 ITC. Under existing Regulation § 1.48-9(k), incremental cost is defined as the excess of the total cost of equipment over the amount that would have been expended for the equipment if the equipment were not used for a qualifying purpose related to the Section 48 ITC. As an illustration, energy property that costs $100 performs a qualified pollution control function as well as a non-qualified function. If it costs $60 to perform the non-qualified function, the incremental cost to the energy property would be the difference of $40.
• Costs includable in the basis of related energy property. Proposed Regulation § 1.48-14(g)(1) provides that only amounts paid or incurred for property are included in the basis of the related energy property. Proposed Regulation §1.48-14(g)(6) would provide that reimbursement for those costs may not be included in the basis of the property.
• Ownership of energy property. Proposed Regulation § 1.48-14(e) provides that taxpayers who own eligible energy property may qualify for the Section 48 credit only to the extent of the taxpayer’s eligible basis in the property itself. Further, where multiple parties hold ownership interests in energy property, each party may be entitled to a credit to the extent of that taxpayer’s fractional interest in the property. These clarifications may help enable more ownership structures involving both tax-exempt and taxable entity owners.

Qualified Interconnection Costs

Qualified interconnection property is not energy property. Proposed Regulation § 1.48-14(g)(2) clarifies that qualified interconnection property is not considered in determining whether an energy property satisfies the domestic content bonus credit amount and the energy communities bonus credit amount. However, under Proposed Regulation § 1.48-14(g), costs paid or incurred for the installation of energy property with a maximum net output of no more than 5 MW are included in the basis of a related energy property.

• 5 MW exception measured at level of energy property. Proposed Regulation § 1.48-14(g)(3) would provide that if an energy project is comprised of multiple energy properties with a combined nameplate capacity of more than 5 MW, each energy property would be eligible to include amounts paid or incurred for qualified interconnection property if each energy property satisfies the 5 MW limitation.
• Maximum net output of energy property. Proposed Regulation § 1.48-14(g)(3) provides that the maximum net output of an energy property is measured only by nameplate generating capacity of the unit when it is placed in service. 

Effective Dates

Taxpayers may generally rely on the Proposed Regulations with respect to property placed in service after December 31, 2022, and during a taxable year beginning on or before the date the final regulations are published in the Federal Register, provided that the taxpayer and all related persons apply the Proposed Regulations in their entirety and in a consistent manner.

With respect to the PWA requirements, taxpayers may rely on that portion of the Proposed Regulations for projects that begin construction on or after January 29, 2023, and on or before the date the regulations are published as final regulations in the Federal Register, provided that, beginning after October 28, 2023, taxpayers follow the portion of the Proposed Regulations that relate to the PWA requirements in their entirety and in a consistent manner. Proposed Regulation § 1.48-13(d) applies to energy projects that begin construction after November 22, 2023.

Proposed Regulation § 1.6418-5(f) would apply special notification rules to credit recaptures under Section 48(a)(10)(C) to taxable years ending on or after the date the final regulations are published.

Request for Public Comments

Treasury and the IRS request comments on all aspects of the Proposed Regulations, in particular the following:

• the need for further guidance with respect to proposed Regulation § 1.48-9(d), which would allow for co-located (shared) qualified facilities eligible for the Section 45 to be treated as an integral part of Section 48 energy property;
• alternative approaches in assessing limitations on the use of hydrogen energy storage property with respect to proposed Regulation § 1.48-9(e)(10)(iv), as well as what documentation is needed to demonstrate that energy property is used to store hydrogen solely used to produce energy;
• whether “second life” batteries or recycled components that may meet the modification rule under proposed Regulation § 1.48-9(e)(10)(v) for energy storage technology should be considered new components for purposes of the 80/20 Rule;
• what types of components may be used to modify existing energy storage technology and whether there are identifiable challenges related to recycled components used to meet the modification rule;
• with respect to Section 48(c)(6)(A)(I), how the exclusion for property primarily used in the transportation of goods or individuals and not to produce electricity should be defined, as well as the specific types of property that may be covered by this exclusion;
• whether “virtual batteries” and similar demand shifting technology excluded by proposed Regulation § 1.48-9(e)(10) should be considered as energy storage technologies;
• further guidance regarding what types of components may be included within the definition of cleaning and conditioning property provided in the definition of qualified biogas property in Section 48(c)(7)(B);
• whether the rules for functionally interdependent property provided in proposed Regulation § 1.48-9(f)(2)(ii) would be sufficient to determine the components that should be included as part of a microgrid controller, or whether another test is needed;
• if additional types of property meet the requirements of proposed Regulation § 1.48-9(f)(3) and could be considered an integral part of energy property;
• whether other methods of measurement with respect to proposed Regulation § 1.48-13(e) may allow electrochromic glass property, fiber-optic solar, and microgrid controllers to qualify for increased credit amounts, provided that the above energy projects generate a maximum net output of less than one megawatt (the One-Megawatt Exception);
• if proposed Regulation § 1.48-13(e)(13) provides suitable tests for measuring the One-Megawatt Exception, or whether an alternative is more suitable;
• comments on the application of the dual use rule to Section 48 after its amendment by the IRA;
• further guidance on whether a rule is needed to address the inapplicability of the dual use rule to microgrid controllers or similar technologies;
• whether the application of the five-megawatt limitation to a single energy property under proposed Regulation § 1.48-14(g)(3) is sufficiently clear; and
• the extent to which multiple energy properties with separate nameplate capacities of less than 5 MW would utilize common power condition equipment for economic or regulatory reasons and/or common interconnection agreements or would instead utilize separate power conditioning equipment and/or interconnection agreements.

A hearing on the Proposed Regulations is scheduled for February 20, 2024, with a deadline for public comments of January 22, 2024.

Our team would be pleased to assist you in your strategic planning. For more information on issues pertaining to tax and energy and climate solutions, please contact Wilson Sonsini attorneys Nicole Gambino, Hershel Wein, Brandon King, or Jaron Goddard.